Suffolk Mental Health Partnership NHS Trust v Crawford & Anor

In unfair-dismissal proceedings, the Employment Tribunal must assess the employer’s conduct and decision, rather than substitute its own view of the facts or of the appropriate response. The inquiry asks whether the employer conducted a reasonable investigation, genuinely believed in the employee’s misconduct on reasonable grounds, and adopted a reasonable response. Reasonableness at each stage means conduct within the range of reasonable responses open to a reasonable employer. Procedural defects may be cured on appeal, including where the appeal is a rehearing or review, so the procedure must be assessed overall. An Employment Tribunal errs by treating evidence or investigative steps as impermissible merely because it would have approached the matter differently.

Two experienced nurses were dismissed for gross misconduct after restraining an elderly dementia patient by securing his chair to a table. The Employment Tribunal found the dismissals unfair, concluding that the employer lacked sufficient evidence, had not conducted an adequate investigation, and could not reasonably have believed that the patient had been tied to the chair without attempts at release. It reduced compensation by 25 per cent for contributory conduct.

The Employment Appeal Tribunal considered whether the Employment Tribunal had substituted its own view for that of the employer, failed to assess the investigation and appeal procedure overall, and misunderstood aspects of the evidence. The central issue was whether the Employment Tribunal had applied the correct approach to the employer’s investigation, belief and response.

1. Appeal allowed; remitted. The Employment Tribunal’s finding of unfair dismissal was set aside. The case was remitted for a rehearing before a fresh Employment Tribunal because there was insufficient clarity to substitute a finding of fair dismissal.
2. The correct inquiry, as summarised in London Ambulance Service NHS Trust v Small [2009] IRLR 563, is whether the employer carried out a reasonable investigation and, at the time of dismissal, genuinely believed on reasonable grounds that the employee was guilty of misconduct. If so, the Tribunal must decide whether dismissal was a reasonable response. The word reasonable at each stage, including investigation, means within the range of reasonable responses open to a reasonable employer, applying J Sainsbury plc v Hitt [2003] ICR 111.
3. The Employment Tribunal adopted a substitution mindset in several respects. It treated the dismissing officer’s personal reconstruction of the disputed restraint as impermissible, evaluated the conflicting evidence itself, and stated that no reasonable employer could have reached the employer’s conclusion. Those were questions for the employer, subject to the range-of-reasonable-responses test.
4. The Employment Tribunal failed to assess whether the alleged failure to obtain a witness’s earlier report rendered the investigation unreasonable. Information unknown to the dismissing officer could not affect the genuineness or reasonableness of the belief formed on the material available, although it could bear on the sufficiency of the investigation. The Tribunal also failed to consider whether the appeal cured any earlier procedural defect.
5. Procedural defects may be cured by an appeal, whether conducted by rehearing or review. The relevant question is whether the procedure viewed overall met the required standard of reasonableness, applying Taylor v OCS Group Ltd [2006] ICR 1602.

• Employment Appeal Tribunal: Allowed the appeal against the Employment Tribunal’s liability decision and remitted the matter to a fresh Employment Tribunal for rehearing.
• Employment Tribunal: Found the dismissals unfair and awarded compensation, subject to a 25 per cent reduction for contributory conduct. The compensation awards were not independently appealed.